DEPARTMENT 205 LAW AND MOTION RULINGS
Case Number: 22SMCV01934 Hearing Date: April 17, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 | Hearing Date: April 17, 2024 PLAINTIFF LEO DAVID’S MOTIONS TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSIONS, SPECIAL INTERROGATORIES AND REQUESTS |
This case arises from an employment dispute. Defendant Aurice Veloso was a long-time caregiver for Plaintiff Leo David and his late wife, Ruth David. (Compl. ¶¶ 7-8.) Plaintiff alleges Defendant stole monies and personal property and engaged in financial and physical elder abuse. (Id. ¶¶ 11-30.) The operative complaint alleges eleven claims for: (1) Elder Abuse; (2) Intentional Infliction of Emotional Distress; (3) Negligent Infliction of Emotional Distress; (4) Breach of Fiduciary Duty; (5) Promissory Estoppel; (6) Breach of Oral Agreement; (7) Fraud; (8) Conversion; (9) Trespass to Chattel; (10) Defamation: Slander (Cal. Civ. Code § 46); and (11) Unjust Enrichment. This hearing is on David’s four motions to compel further responses to requests for admissions, special interrogatories, form interrogatories, and requests for production of documents. David also seeks monetary sanctions. David argues that (1) Veloso waived all of her objections; (2) Veloso’s amended answers are evasive and not code-compliant; (3) Veloso’s objections are boilerplate and meritless, and (4) Veloso’s initial responses (containing only boilerplate objections) and subsequent false promises to provide amended answers constitute misuse of the discovery process and are sanctionable. On receipt of a response to form interrogatories, special interrogatories, and/or demand requests, the propounding and/or demanding party may move for an order compelling further response if: (1) the response is evasive or incomplete; (2) the representation of inability to comply is inadequate, incomplete, or evasive; or (3) the objection is without merit or too general. (Code Civ. Proc., §§ 2030.300, subd. (a), 2031.310, subd. (a).)¿¿¿ “On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1)¿An answer to a particular request is evasive or incomplete[;] (2)¿An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a)(1)–(2).) David’s motions to compel further are timely. On November 29, 2023, the parties agreed to extend the parties’ motion to compel deadlines to January 10, 2024. (Ex. 9 to McKeon Decl.) On December 14, 2023, the parties again agreed to extend the deadlines from January 10, 2024 to February 10, 2024. (Ex. 10 to McKeon Decl.) On January 26, 2024, this deadline was further extended by agreement between the parties to a date “two weeks after the new [informal discovery conference] IDC.” (Ex. 13 to McKeon Decl.) The “new” IDC occurred on March 8, 2024—thus David’s motion to compel deadline was extended by agreement to March 22, 2024. David filed his motions to compel further on March 21, 2024. On May 26, 2023, David’s counsel attempted to meet and confer regarding Veloso’s refusal to provide substantive responses. (Ex. 6 to McKeon Decl.) On June 1, 2023, Veloso’s counsel promised to provide discovery responses “in the next few days.” (Ex. 7 to McKeon Decl.) Veloso failed to provide any substantive responses. (McKeon Decl. ¶ 9.) On December 12, 2023, the parties participated in an IDC where the Court granted David permission to file his motions to compel. Following the IDC, Veloso promised to provide amended, code-compliant responses to all of David’s discovery requests. (Exs. 10-11.) While Veloso did serve supplemental responses, David argues the responses continue to be evasive and incomplete. On these facts, the Court concludes David has sufficiently complied with his meet and confer obligations. On a motion to compel further responses, this Department’s rules require the moving party to file a joint statement consisting of four columns: the first column will identify the number of the discovery request; the second, the text of the discovery request; the third, the text of the response, and the fourth, brief bullet-point statements, one from each party as to why a further response should or should not be compelled. David filed a “joint” statement but it did not include Veloso’s position. David’s counsel represents that he sent a draft joint statement to Veloso’s counsel on March 11, 2024, and asked her to provide her portion by March 14, 2024. Veloso’s counsel did not respond. On March 17, 2024, David’s counsel again asked Veloso’s counsel for her portion of the joint statement. Veloso’s counsel did not provide her portion of the joint statement. On these facts, the Court concludes David has sufficiently met his obligations to comply with the Court’s local rule regarding the filing of a joint statement. Moreover, given Veloso’s failure to cooperate in the preparation of the joint statement, the Court declines to consider her oppositions to the motions to compel. Veloso’s belated filing of a “joint statement” on April 9, 2024, past the deadline for filing her oppositions, does not cure her earlier failure to cooperate in the preparation of a joint statement. David served Veloso with requests for admissions (“RFAs”), special interrogatories (“SROGs”), form interrogatories (“FROGs”) and requests for production of documents (“RFPs”), on March 20, 2023. (Exs. 1, 2, 3, 4 to McKeon Decl.) Veloso’s responses were due by April 21, 2023. On April 20 (the day before her responses were due), Veloso sought an extension to May 22. (Ex. 5 to McKeon Decl.) David granted the extension “on the condition that [Veloso would] take the time to provide substantive code-compliant responses and not objections only (or mainly) answers.” (Id.) Nonetheless, Veloso served objection-only responses on May 22. (Ex. 4(a) to McKeon Decl.) Because Veloso’s objection-only responses violated the terms of the extension, Veloso’s responses were untimely, and her objections are waived. Accordingly, the Court grants David’s motions to compel further responses. Veloso is ordered to serve further responses, without objections, to RFA Nos. 41-42, 47-54; SROG Nos. 37, 38, 44, 48-50, 53-71, 158-160, 164-217; FROG Nos. 8.4, 8.8, 9.1, 12.1, 12.2, 12.3, 16.1, 16.2, 17.1 and 50.1-50.6; and RFP Nos. 1-66. Veloso is further ordered to produce all documents responsive to the RFPs. David also seeks sanctions in the amount of $21,725. The Court concludes sanctions are warranted given Veloso’s misuse of the discovery process. First, Veloso’s original responses asserted identical objections to every request. Asserting identical objections to every request is not a “good faith” response. Second, Veloso refused to withdraw her objections and serve a single substantive response for nearly seven months, from March 20, 2023 to October 19, 2023. Third, Veloso’s counsel promised on numerous occasions that she would provide code-compliant responses, but she failed to do so. It is now over a year since David served his discovery requests, and David is still awaiting substantive responses to numerous discovery requests in addition to the production of responsive documents. In determining the appropriate amount of sanctions, the Court starts with the lodestar which is the reasonable hourly rate multiplied by the reasonable hours spent. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096; see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) David’s counsel has not stated how long he has been practicing, and the Court therefore, cannot determine whether his hourly rate of $550 is reasonable for an attorney of similar experience in the prevailing market. Accordingly, the Court will use an hourly rate of $250. As to the reasonable hours spent, David’s counsel attests he has spent 31.5 hours preparing the four motions to compel, conducting research in support of the motions, analyzing Veloso’s various discovery responses to prepare the joint statements, collecting exhibits, and preparing his declaration. He expects to spend another 8 hours preparing a reply and preparing for the hearing. In other words, counsel spent an average of 9.875 hours per motion. The Court concludes these hours are reasonable, and accordingly, it will award $9,875 in sanctions. Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART David’s motions to compel further responses and for sanctions. Veloso is required to provide further responses within 20 days of this Order. Also, sanctions of $9,875 is awarded in favor of David and against Veloso and her counsel, jointly and severally and is to be paid within 30 days of this Order. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 | Related to: Case No. 22STCV01934 Hearing Date: April 17, 2024 CROSS-DEFENDANTS’ MOTION FOR SANCTIONS AGAINST AURICE VELOSO |
This case arises from claims of discrimination, harassment, and retaliation. Plaintiff Aurice Veloso was employed by Defendant Leo David as a caregiver for his wife. Veloso alleges that David asked her to sleep with him in exchange for improved working conditions and other financial incentives including a house, car and tuition. Veloso further alleges that despite her working around the clock, she was not compensated for overtime or provided rest and meal breaks. David then terminated Veloso when she opposed his alleged discrimination and harassment. Defendant paid Plaintiff’s wages through various companies he owned, including XCVI, LLC (“XCVI”) and Construction for Less, Inc. (CFL). Plaintiff alleges these corporate defendants ratified and adopted the conduct of David. On November 3, 2022, Veloso filed a complaint against David, XCVI and CFL asserting (among others) claims under the Fair Employment and Housing Act (“FEHA”) for (1) sex discrimination, (2) sex harassment (hostile work environment), (3) sex harassment (quid pro quo), (4) retaliation and (5) failure to prevent/investigate (the “FEHA Claims”). On August 14, 2023, XCVI and CFL filed a demurrer to the FEHA claims based on Veloso’s failure to exhaust her administrative remedies. On October 11, 2023, David filed a separate demurrer, challenging the FEHA claims on similar grounds as XCVI and CFL but with the additional ground that David was not subject to FEHA because there was no allegation in the complaint that he employed five or more persons. On November 15, 2023, the Court issued an order sustaining David’s demurrer to the FEHA claims without leave to amend holding that Plaintiff has not sufficiently plead David employed five or more persons and has not set forth facts demonstrating that she could successfully amend to cure this defect. Six days later, on November 21, 2023, the Court issued a separate order sustaining XCVI and CLF’s demurrer to the FEHA claims without leave to amend reasoning that Plaintiff has not exhausted her administrative remedies prior to filing her complaint. On December 1, 2023, Veloso filed a motion for reconsideration, which the Court denied on January 8, 2024. David filed a cross-complaint. On January 26, 2024, Veloso filed a cross-complaint to David’s cross-complaint, asserting six FEHA claims against David, XCVI and CFL (“Cross-Defendants”). These are the exact same claims against the same parties that the Court already dismissed without leave to amend. This hearing is on Cross-Defendants’ motion for terminating sanctions and for monetary sanctions pursuant to Civ. Proc. Code §§ 128.5 and 128.7 and 177.5. Cross-Defendants seek terminating sanctions as to all cross-claims filed by Veloso, and monetary sanctions against Veloso and her counsel, jointly and severally, in the amount of $5,000. Cross-Defendants argues that Veloso’s cross-complaint, filed after the Court dismissed her FEHA claims without leave to amend, is a meritless pleading subject to sanctions. Sanctions Under Code Civ. Proc. §128.5 Code of Civil Procedure § 128.5 permits a trial court to “order a party, a party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).) Actions or tactics include, but are not limited to, filing or opposing motions, complaints, answers, or other responsive pleadings. (Code Civ. Proc., § 128.5, subd. (b)(1).) “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subd. (b)(2).) Bad faith is determined using a subjective standard. (In re Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 139, 134-35.)¿¿ Expenses pursuant to Section 128.5 cannot be imposed unless noticed in a party’s moving or responding papers, or on the court’s own motion after providing the offending party notice and an opportunity to be heard. (Code Civ. Proc., § 128.5, subd. (c).) An order imposing expenses must be in writing and must recite in detail the action, tactic, or circumstances justifying the order. (Id.)¿¿ Sanctions under this section may also be awarded if the offending party is provided a 21-day safe harbor to withdraw or correct an offending document or pleading and declines to do so. “If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.5, subd. (f)(1)(B).) In addition, the court may, on its own motion, “enter an order describing the specific action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay, and direct an attorney, law firm, or party to show cause why it has made an action or tactic as defined in subdivision (b), unless, within 21 days of service of the order to show cause, the challenged action or tactic is withdrawn or appropriately corrected.” (Code Civ. Proc., § 128.5, subd. (f)(1)(D)(1).) An award of sanctions may include an award of attorney’s fees incurred as a direct result of the offending party’s bath faith action or tactic. (Code Civ. Proc., § 128.5, subd. (f)(1)(D)(2).)¿¿ Sanctions Under Code Civ. Proc. §128.7¿ An attorney or unrepresented party who presents a motion to the court makes an implied certification as to its legal and factual merit, which is subject to sanctions for violation of this certification under Code of Civil Procedure § 128.7. (Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The Court may impose sanctions for conduct that violates any one of the requirements set forth in Code of Civil Procedure section 128.7, subdivision (b). (Eichenbaum v. Alon (2003) 106 Cal.App.4th 967, 976.)¿¿¿ Code of Civil Procedure section 128.7, subdivision (b) provides:¿¿ (b)¿By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:¿ (1)¿It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.¿ (2)¿The claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.¿ (3)¿The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.¿ (4)¿The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.¿ Only “an attorney or unrepresented party may be sanctioned” under the statute. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.)¿¿ “Under section 128.7, a court may impose sanctions if it concludes a pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. [Citation.]” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189.) “A claim is factually frivolous if it is ‘not well grounded in fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ [Citations.]” (Id.) No showing of bad faith is required. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1221.)¿¿ “The California Legislature essentially sought to replicate rule 11 [of the Federal Rules of Civil Procedure] when it enacted section 128.7.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 518, fn. 2.) As a result, federal case law construing rule 11 is persuasive authority on the meaning of Code of Civil Procedure section 128.7. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Under rule 11, even though an action may not be frivolous when it is filed, it may become so if later-acquired evidence refutes the findings of a prefiling investigation and the attorney continues to file papers supporting the client’s claims. (See Childs v. State Farm Mutual Automobile Insurance Company (5th Cir. 1994) 29 F.3d 1018, 1024-1026.) As a result, a plaintiff’s attorney cannot “just cling tenaciously to the investigation he had done at the outset of the litigation and bury his head in the sand.”¿ (Id. at 1025.)¿¿ In addition, Code of Civil Procedure section 128.7 “contains a safe harbor provision. It requires the party seeking sanctions to serve on the opposing party, without filing or presenting it to the court, a notice of motion specifically describing the sanctionable conduct. Service of the motion initiates a 21-day ‘hold’ or ‘safe harbor’ period. [Citations.] During this time, the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions ‘‘shall not’’ be filed. [Citations.] By mandating a 21-day safe harbor period to allow correction or withdrawal of an offending document, section 128.7 is designed to be remedial, not punitive. [Citation.]” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585, 590-591.)¿ Sanctions under Code Civ. Proc. §177.5 A judicial officer shall have the power to impose reasonable money¿sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification. This power shall not apply to advocacy of counsel before the court. For the purposes of this section, the term “person” includes a witness, a party, a party’s attorney, or both. Sanctions pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers; or on the court’s own motion, after notice and opportunity to be heard. An order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order. REQUEST FOR JUDICIAL NOTICE Veloso requests judicial notice of her DFEH administrative charge filed on January 26, 2024. The Court grants the request pursuant to Cal. Evid. Code §§ 452(c) and 453.¿¿ The 21-day “safe harbor” provision is strictly enforced. “Substantial compliance” is insufficient. (See¿Cromwell v. Cummings¿(1998) 65 Cal.App.4th Supp. 10, 15¿(“Correspondence to opposing counsel which threatens sanctions of an unknown nature at an unspecified time against unidentified persons, and which lacks citation to controlling authority, does not fulfill these statutory purposes.”).) Cross-Defendants have not shown they complied with the 21 safe harbor provision. Accordingly, the Court denies their motion for sanctions under §§128.5 and 128.7. As to Cross-Defendants’ motion under §177.5, that section does not allow for terminating sanctions, and any monetary sanctions are limited to $1,500 and are payable to the Court, not the parties. Accordingly, §177.5 also does not provide support for Cross-Defendants’ motion. Notwithstanding, courts have inherent authority to dismiss an action. (Code Civ. Proc., §§ 581, subd. (m),¿583.150;¿Lyons v. Wickhorst¿(1986) 42 Cal.3d 911, 915;¿Progressive Concrete, Inc. v. Parker¿(2006) 136 Cal.App.4th 540, 551.) Trial courts should only exercise this authority in extreme situations, such as when the conduct was clear and deliberate and where no lesser alternatives would remedy the situation (Lyons v. Wickhorst, 42 Cal.3d at 917),¿the fault lies with the client and not the attorney, and when the court issues a directive that the party fails to obey. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799).) Here, the Court sustained a demurrer on Veloso’s FEHA claims without leave to amend and denied her motion for reconsideration of its ruling. Notwithstanding the Court’s orders, Veloso filed a cross-complaint alleging the same FEHA claims in the same action. Veloso’s cross-complaint is also procedurally improper – Veloso cites no authority that she can file a cross-complaint to a cross-complaint to her own action. The proper procedure was to file a motion for leave to amend her complaint, which Veloso failed to do. Veloso’s opposition to the motion for sanctions is essentially a motion for reconsideration, outlining reasons Veloso believes the Court got it wrong. But the motion for reconsideration is not based on any new facts or law. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (“a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law”).) Veloso’s January 26, 2024 administrative charge is based on the same facts as her original complaint. The charge cannot be a new fact. If it were otherwise, then each time the Court issued an order that Veloso disagrees with, she could re-file a new administrative complaint to create a “new” fact for reconsideration. Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Cross-Defendants’ motion for sanctions. Pursuant to Code Civ. Proc. §177.5, the Court orders Veloso and her attorney to pay $1,500 to the Court within 30 days of the date of this Order. The Court also denies as moot Cross-Defendants’ motion to strike the Cross-Complaint set for hearing on April 25, 2024. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 | Case No.: 22STCV35085 c/w 22SMCV01934 Hearing Date: April 17, 2024 LEO DAVID, XCVI, LLC’S AND CONSTRUCTION FOR LESS, INC.’S MOTION TO EITHER VACATE TRIAL SETTING OR CONTINUE TRIAL | | |
This action arises from Aurice Veloso’s employment as a care giver for Leo David and his late wife, Ruth David. David alleges Veloso stole monies and personal property and engaged in financial and physical elder abuse. Meanwhile, Veloso alleges David harassed and discriminated against her, and failed to pay her rest and meal breaks and overtime. Veloso claims David then fired her when she complained of the alleged harassment and discrimination. Veloso also sued David’s companies, XCVI, LLC (“XCVI”) and Construction for Less, Inc. (“CFL”) as joint employers. This hearing is on David, XCVI and CFL’s (“Moving Parties’”) motion to continue trial. Moving Parties seek a six month continuance because (1) Veloso’s claims are not yet fully in issue, (2) Veloso’s first amended complaint only recently became at issue and significant discovery is needed to explore the factual bases for these claims, (3) written discovery is nowhere near complete, (4) while Veloso has identified over 106 fact witnesses in this case, fact depositions have not begun, (5) experts have not been selected, and (6) the summary judgment deadline was on March 8, 2024 yet the scope of Veloso’s claims is uncertain and significant discovery issues remain unresolved. There was no opposition filed as of the posting of this tentative ruling. Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332, subd. (a).)¿ Continuances are thus generally disfavored.¿ (See id., rule 3.1332, subd. (b).)¿ Nevertheless, the trial court has discretion to continue trial dates.¿ (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)¿ Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause.¿ (Cal. Rules of Court, rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at p. 1246.)¿¿¿ Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.¿ (Cal. Rules of Court, rule 3.1332, subd. (c).)¿¿ The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application.¿ (Id., rule 3.1332, subd. (d).)¿ The Court concludes that a continuance is not warranted. The parties have over-litigated this case and engaged in scorch-earth tactics, filing numerous motions that could have been avoided had the parties met and conferred in good faith. Allowing a continuance would only encourage further over-litigation, excessive motion practice and the consumption of limited judicial resources. To the extent discovery is not further advanced, it results from the parties’ aggressive approach to discovery, of either serving excessive amounts of discovery or resisting even the most basic requests. For the foregoing reasons, the Court DENIES the motion to either vacate trial setting or continue trial. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
Case Number: 23SMCV02329 Hearing Date: April 17, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 PETER B. MENDELSOHN, M.D., et al., | Hearing Date: April 17, 2024 DEFENDANT SPECIALTY SURGICAL CENTER, LLC’S DEMURRER TO |
This is a medical malpractice case. Defendants David Kamen, Peter Mendelsohn and Specialty Surgical Center performed cataract surgery on Plaintiff Kevin McGinn’s right eye. Plaintiff alleges Defendants performed the cataract surgery “knowing that insufficient sedation and anesthesia was provided”. (Second Amended Complaint (“SAC”) ¶23.) Plaintiff claims that during the procedure, he indicated to both individual Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made. (Id. ¶11.) Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated. (Id.) The operative complaint alleges four claims for (1) medical negligence, (2) corporate negligence, (3) assault and battery and (4) intentional infliction of emotional distress. This hearing is on Defendant Specialty Surgical Center, LLC’s (“Moving Defendant’s”) demurrer and motion to strike the SAC. Moving Defendant argues that (1) Plaintiff’s first cause of action for medical negligence fails because Plaintiff has not alleged causation on the part of Moving Defendant, (2) Plaintiff’s second cause of action for corporate negligence fails to plead the essential elements of breach and causation and is also duplicative of Plaintiff’s medical negligence claim, and (3) Plaintiff’s third cause of action for assault and battery fails because Plaintiff has not alleged what touching or contact was performed by Moving Defendant that would give rise to a claim for medical battery and the Complaint does not plead the elements of a claim for assault. Moving Defendant also argues that all four claims are fatally uncertain as the Complaint fails to specify what acts or omissions on the part of Moving Defendant give rise to each claim. REQUEST FOR JUDICIAL NOTICE Moving Defendant requests judicial notice of (1) Plaintiff’s first amended complaint (“FAC”), (2) the notice of ruling on Moving Defendant’s demurrer to the FAC, (3) Plaintiff’s second amended complaint, (4) the fact that Moving Defendant is a certified ambulatory surgery center under Health & Safety Code §1248.1 et seq. and within the statutory definition of “health care provider” as defined under Code Civ. Proc. §425.13, and (5) the fact that the Medical Board of California fully restored the medical license of Peter Mendelsohn, M.C. to renewed/current status and free of probation requirements effective March 30, 2015. There is no opposition to the request for judicial notice. The Court grants the request pursuant to Cal. Evid. Code §§ 452(d), 452(h) and 453. A demurrer to a complaint may be general or special.¿ A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10, subd. (e).)¿ A general demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc. § 430.10, subd. (f).)¿ The term uncertain means “ambiguous and unintelligible.”¿ (Id.)¿ A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.¿ (Code Civ. Proc. §§ 430.41(a), 435.5(a).)¿ The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).)¿ Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).)¿ Moving Defendant submits the declaration of Bryan Malone who attests the parties met and conferred by telephone at least five days before the demurrer and motion to strike were filed, which satisfies the requirements of §§430.41 and 435.5.¿ Moving Defendant argues that Plaintiff fails to state a claim for medical negligence because Plaintiff has not alleged causation. The Court disagrees. To state a claim for medical negligence, a plaintiff must allege (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) Here, Plaintiff alleges that Moving Defendant failed to screen the expertise of the individual defendants and to monitor the quality of care provided at their health care facilities. (SAC ¶18.) Plaintiff further alleges that had Moving Defendant properly screened Defendant Mendelsohn, it would not have allowed him to practice in its facility when he had been subject to prior discipline by the Medical Board. (Id.) Without access to Moving Defendant’s facility, Mendelsohn would not have been able to perform the procedure on Plaintiff. At the pleading stage, these facts are sufficient to support a finding of causation. Moving Defendant argues that there is no causal nexus because while Mendelsohn was placed on probation by the Medical Board of California earlier in his career, his license was fully restored to renewed/current status at the time of the procedure. But regardless of whether Mendelsohn was on probation at the time of the surgery, his past discipline is relevant to a proper screening, and it is a question of fact for the jury as to whether given his past discipline, he should have been allowed to practice at Moving Defendant’s facility. Moving Defendant also argues that Plaintiff’s claim for medical negligence is uncertain because it fails to specifically allege what Moving Defendant did or did not do with respect to Plaintiff’s care and treatment, and how, if at all, that caused or contributed to his alleged injury and his alleged damages. The Court disagrees. Here, Plaintiff’s medical negligence claim is not so vague or ambiguous that Moving Defendant cannot reasonably respond. Plaintiff has alleged what Moving Defendant did or failed to do – namely, that they failed to screen the expertise of the individual defendants and failed to monitor the quality of care provided in their facilities. Plaintiff has also alleged how the alleged acts or omissions caused Plaintiff’s injury – namely, that had Moving Defendant properly screened Mendelsohn, he would not have been allowed to practice at Moving Defendant’s facility and operate on Plaintiff. These facts are sufficient to support a claim for medical negligence at the pleading stage. Accordingly, the Court overrules the demurrer to the first cause of action. Moving Defendant argues that Plaintiff fails to state a claim for corporate negligence because Plaintiff has not sufficiently alleged breach and causation and the claim for corporate negligence is duplicative of the medical negligence claim. The Court agrees as to the second ground. Here, Plaintiff’s claim for corporate negligence adds nothing to the complaint by way of fact or theory. The facts pleaded for both claims are virtually identical. And both claims are negligence-based. Moreover, the Opposition fails to address Moving Defendant’s argument that the claims are duplicative. Accordingly, the Court sustains the demurrer to the second cause of action for corporate negligence without leave to amend. Moving Defendant argues that Plaintiff has not stated a claim for assault but his allegations merely go to a claim for battery. The Court disagrees. The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3)¿ plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 1301;¿Plotnik v. Meihaus¿(2012) 208 Cal.App.4th 1590, 1603–1604.) The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.¿(CACI No. 1300; see¿Kaplan v. Mamelak¿(2008) 162 Cal.App.4th 637, 645.) The¿differences between assault and battery are that assault may involve a threat to touch any part of plaintiff’s person and no actual contact is required, while battery requires actual contact. Battery includes assault; in fact, battery is a consummated assault. Accordingly, Defendant’s argument that Plaintiff has only alleged battery but not assault is not well-taken. By alleging battery, Plaintiff necessarily alleges assault. Moving Defendant next argues that Plaintiff cannot state a claim for battery because Plaintiff consented to the procedure performed and medical battery requires that a doctor perform a substantially different medical procedure than one to which the patient consented. The Court agrees. As a general rule, one who consents to a touching cannot recover in an action for battery. (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.) Thus, one who gives consent to a surgery cannot recover for assault and battery where the consented to surgery was actually performed. However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for battery. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610.) The rule of conditional consent has been applied in battery actions against physicians and surgeons in California. (Ashcraft, 228 Cal.App.3d at 610 (consent to blood transfusion but only using blood from the patient’s family); Grieves¿v.¿Superior Court¿(1984) 157 Cal.App.3d 159, 165¿(consent to tubal ligation only if baby born without deformities);¿Keister v.¿O'Neil (1943) 59 Cal.App.2d 428, 434-435¿(operation consented to but “absolutely did not want . . . a spinal anesthetic”).) However, breach of conditional consent has only been found in situations where the condition is specific and is not intangible. For instance, it is found when a patient conditions her consent to surgery during the AIDS crisis on the use of “family blood” during operation. (Ashcraft, 228 Cal.App.3d at 613.) Also, the condition is specific when a patient conditions tubal ligation on the birth of a baby without deformities. (Grieves, 157 Cal.App.3d at 165.) On the contrary, in Conte v. Girard Orthopaedic Surgeons, Medical Group, Inc. (2003) 107 Cal.App.4th 1260, a nonsuit case involving a battery claim, the plaintiff argued his consent to shoulder surgery was conditioned upon a repair of his shoulder fractures with internal fixation hardware. When the surgeon did not repair the fractures, the plaintiff claimed his conditional consent had been violated. The Conte surgeon began a surgical procedure arthroscopically and determined that further surgery to repair the shoulder fractures would cause disintegration of the bone, and thus, the surgeon did not repair the bone. The Conte plaintiff wanted surgery with a repair but got surgery without a repair. The Conte court declined to extend a battery cause of action, where treatment was within the bounds of consent, but less than plaintiff’s authorization. (Conte, 107 Cal.App.4th at 1268.) The Conte court found the alleged condition of a repair to be an “intangible condition,” unlike the “specific condition” found in Ashcraft. (Id. at 1269.) In the present case, Plaintiff’s claim of battery rests on the theory that although the cataract surgery was consented to, the consent was subject to a condition: the surgery had to be performed with adequate anesthesia. (Ashcraft, 228 Cal.App.3d at 610.) Plaintiff, however, does not quantity what constitutes “adequate anesthesia.” It is an intangible condition not based on any objectively verifiable fact, but on a physician’s subjective medical judgment which sounds purely in negligence. “Adequate anesthesia” is not a “specific condition” as found in Ashcraft or Grieves. Further, in cases of conditional consent, the defendant must have an “inten[t] to perform the procedure with knowledge that the condition had not occurred.” (Dennis v. Southland (2009) 174 Cal.App.4th 540, 544.) The defendant must have knowledge of the condition to intentionally deviate from it. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498.) Thus, the court in Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, noted that a battery claim based upon conditional consent would not lie where the plaintiff fails to explicitly state an express condition. (Id. at 1269.) Likewise, the Piedra court found that a claim of battery based upon conditional consent would not lie where the plaintiffs failed to communicate their condition to the defendant, and the defendant did not have knowledge of the condition. (123 Cal.App.4th at 1498.) Here, there are no allegations establishing that Plaintiff expressly communicated the condition to his consent. There are no allegations about the terms of Plaintiff’s condition (i.e., how much anesthesia he wanted to receive), to whom he communicated this condition and when the communication took place. In short, the SAC is silent as to whether Plaintiff ever communicated his conditional consent to anyone prior to undergoing the surgery. Instead, it merely alleges that Plaintiff consented to the procedure only if sufficient anesthesia was used. (SAC ¶22.) This allegation does not say Plaintiff communicated his condition to anyone. Accordingly, the Court sustains the demurrer to Plaintiff’s third cause of action for assault and battery without leave to amend. Moving Defendant moves to strike paragraph 18 of the SAC on the ground that it is purportedly false. The Court disagrees. Paragraph 18 of the SAC states in relevant part: “Defendant Specialty Surgical Center was furthermore on notice of the fact that Defendant Mendelsohn had been subject to discipline by the State of Medical Board which had resulted in the revocation of his medical licenses which was stayed with a three year period of probation. Said discipline related to the practice of medicine. If Defendant Specialty Surgical Center had performed reasonable screening procedures, Defendant Mendelsohn would not have been allowed privileges to practice anesthesiology in Defendant’s surgical center.” Moving Defendant argues that this paragraph is false because “the Medical Board of California fully restored Dr. Mendelsohn’s license to renewed/current status and free of probation requirements effective March 30, 2105, i.e., some seven years before Plaintiff’s procedure here.” But nothing in Paragraph 18 states Mendelsohn’s license was suspended at the time of the procedure. It merely notes that it was suspended at some point, and this prior discipline should have caused Moving Defendant to disallow Mendelsohn’s privileges to practice anesthesiology in Moving Defendant’s surgical center. Accordingly, the allegations in paragraph 18 are not inconsistent with the fact that the Medical Board restored Dr. Mendelsohn’s license to practice medicine, and there is no reason to strike the allegations as false. Accordingly, the Court denies the motion to strike. Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART Defendant Specialty Surgical Center, LLC’s demurrer and DENIES Defendant’s motion to strike. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 PETER B. MENDELSOHN, M.D., et al., | Hearing Date: April 17, 2024 DEFENDANT PETER MENDELSOHN’S DEMURRER TO FIRST AMENDED |
This is a medical malpractice case. Defendants David Kamen, Peter Mendelsohn and Specialty Surgical Center performed cataract surgery on Plaintiff Kevin McGinn’s right eye. Plaintiff alleges Defendants performed the cataract surgery “knowing that insufficient sedation and anesthesia was provided”. (Second Amended Complaint (“SAC”) ¶23.) Plaintiff claims that during the procedure, he indicated to both individual Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made. (Id. ¶11.) Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated. (Id.) The operative complaint alleges four claims for (1) medical negligence, (2) corporate negligence, (3) assault and battery and (4) intentional infliction of emotional distress. This hearing is on Defendant Peter Mendelsohn’s demurrer. Mendelsohn argues that (1) Plaintiff’s third cause of action for assault and battery fails because there is no dispute Plaintiff consented to the surgery, and the alleged condition Plaintiff placed on his consent for “sufficient” anesthesia is too intangible to give rise to a claim for battery, and (2) Plaintiff’s fourth cause of action for intentional infliction of emotional distress fails because Plaintiff fails to plead facts showing extreme and outrageous conduct or intent to cause or reckless disregard of the possibility of causing emotional distress. “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).) Mendelsohn submits the Declaration of Young Choi, which fails to show counsel met and conferred by phone or in person. The declaration merely states the parties met and conferred but fails to specify how. Notwithstanding, the Court cannot sustain or overrule a demurrer based on an insufficient meet and confer. (Code Civ. Proc. § 430.41(a)(4).) However, the Court cautions the parties to comply with their meet and confer obligations; otherwise, the Court will have to continue the hearing on their motion. Mendelsohn argues that Plaintiff cannot state a claim for assault and battery because Plaintiff consented to the procedure performed and medical battery requires that a doctor perform a substantially different medical procedure than one to which the patient consented. The Court agrees. The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3)¿ plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm. (CACI No. 1301;¿Plotnik v. Meihaus¿(2012) 208 Cal.App.4th 1590, 1603–1604.) The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.¿(CACI No. 1300; see¿Kaplan v. Mamelak¿(2008) 162 Cal.App.4th 637, 645.) As a general rule, one who consents to a touching cannot recover in an action for battery or assault. (So v. Shin (2013) 212 Cal.App.4th 652, 668-69.) Thus, one who gives consent to a surgery cannot recover for assault and battery where the consented to surgery was actually performed. However, it is well recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for battery. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 610.) The rule of conditional consent has been applied in California in battery actions against doctors. (Ashcraft, 228 Cal.App.3d at 610 (consent to blood transfusion but only using blood from the patient’s family); Grieves¿v.¿Superior Court¿(1984) 157 Cal.App.3d 159, 165¿(consent to tubal ligation only if baby born without deformities);¿Keister v.¿O'Neil (1943) 59 Cal.App.2d 428, 434-435¿(operation consented to but “absolutely did not want . . . a spinal anesthetic”).) However, breach of conditional consent has only been found in situations where the condition is specific and is not intangible. For instance, it is found when a patient conditions her consent to surgery during the AIDS crises on the use of “family blood” during operation. (Ashcraft, 228 Cal.App.3d at 613.) Also, the condition is specific when a patient conditions tubal ligation on the birth of a baby without deformities. (Grieves, 157 Cal.App.3d at 165.) On the contrary, in Conte v. Girard Orthopaedic Surgeons, Medical Group, Inc. (2003) 107 Cal.App.4th 1260, a nonsuit case involving a battery claim, the plaintiff argued his consent to shoulder surgery was conditioned upon a repair of his shoulder fractures with internal fixation hardware. When the surgeon did not repair the fractures, the plaintiff claimed his conditional consent had been violated. The Conte surgeon began a surgical procedure arthroscopically and determined that further surgery to repair the shoulder fractures would cause disintegration of the bone, and thus, the surgeon did not repair the bone. The Conte plaintiff wanted surgery with a repair but got surgery without a repair. The Conte court declined to extend a battery cause of action, where treatment was within the bounds of consent, but less than plaintiff’s authorization. (Conte, 107 Cal.App.4th at 1268.) The Conte court found the alleged condition of a repair to be an “intangible condition,” unlike the “specific condition” set forth in Ashcraft. (Id. at 1269.) In the present case, Plaintiff’s claim of battery rests on the theory that although the cataract surgery was consented to, the consent was subject to a condition: the surgery had to be performed with adequate anesthesia. (Ashcraft, 228 Cal.App.3d at 610.) Plaintiff, however, does not quantity what constitutes “adequate anesthesia.” It is an intangible condition not based on any objectively verifiable fact, but on a physician’s subjective medical judgment which sounds purely in negligence. “Adequate anesthesia” is not a “specific condition” as found in Ashcraft and Grieves. Further, in cases of conditional consent, the defendant must have an “inten[t] to perform the procedure with knowledge that the condition had not occurred.” (Dennis v. Southland (2009) 174 Cal.App.4th 540, 544.) The defendant must have knowledge of the condition to intentionally deviate from it. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498.) Thus, the court in Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, noted that a battery claim based upon conditional consent would not lie where the plaintiff fails to explicitly state an express condition. (Id. at 1269.) Likewise, the Piedra court found that a claim of battery based upon conditional consent would not lie where the plaintiffs failed to communicate their condition to the defendant, and the defendant did not have knowledge of the condition. (123 Cal.App.4th at 1498.) Here, there are no allegations establishing that Plaintiff expressly communicated the condition to his consent. There are no allegations about the terms of Plaintiff’s condition (i.e., how much anesthesia he wanted to receive), to whom he communicated this condition and when the communication took place. In short, the SAC is silent as to whether Plaintiff ever communicated his conditional consent to anyone prior to undergoing the surgery. Instead, it merely alleges that Plaintiff consented to the procedure only if sufficient anesthesia was used. (SAC ¶22.) This allegation does not say Plaintiff communicated his condition to anyone. Accordingly, the Court sustains the demurrer to Plaintiff’s third cause of action for assault and battery. Intentional Infliction of Emotional Distress Mendelsohn argues that Plaintiff’s claim for intentional infliction of emotional distress fails as a matter of law because Plaintiff has not alleged extreme and outrageous conduct or that Mendelsohn intended to cause or acted in reckless disregard of the probability of causing emotional distress. The Court disagrees. The elements of a claim for intentional infliction of emotional distress are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress, (2) the plaintiff’s suffering severe or extreme emotional distress, and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To be outrageous, conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id.) The defendant must have engaged in conduct “intended to inflict injury or engaged in with the realization that injury will result. It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christenson v. Superior Court (1991) 54 Cal.3d 868, 903.) To avoid a demurrer, the plaintiff must allege with “great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “Whether behavior is extreme or outrageous is a legal determination to be made by the court, in the first instance.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172; Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) Plaintiff has sufficiently alleged facts that would demonstrate extreme and outrageous conduct beyond what is expected in a civilized society. Plaintiff claims that during the procedure, he indicated to Defendants that he was awake and had not been properly anesthetized and sedated and was aware of the surgery and could feel the incisions made. (Id. ¶11.) Despite this, Plaintiff claims Defendants proceeded with the surgery, knowing he was insufficiently sedated. (Id.) These facts are sufficient to support a finding that Defendants’ conduct was extreme and outrageous and that they engaged in such conduct with the intent to inflict injury or with the realization that injury will result. Mendelsohn’s citation to Davidson v. City of Westminster (1982) 32 Cal.3d 197, is unavailing. There, a woman who was stabbed in a public laundromat that was under police surveillance, brought an action for negligence and intentional infliction of emotional distress against the two police officers conducting the surveillance. (Id. at 201.) The trial court found that the officers’ conduct did not rise to the level of outrageous conduct so extreme as to exceed all bounds of that usually tolerated in a civilized society. The Supreme Court affirmed. (Id. at 258-259.) Unlike in Davidson, where the two police officers were bystanders, here, the alleged misconduct was directly undertaken by Mendelsohn. That Mendelsohn’s conduct was extreme and outrageous and that he acted for the purpose of causing harm to Plaintiff can be inferred from the fact that Plaintiff brought to his attention that he was insufficiently sedated during the surgery but Mendelsohn proceeded with the surgery anyway. Mendelsohn argues there can be no extreme or outrageous conduct where Plaintiff has not alleged he communicated the condition of sufficient anesthesia to Mendelsohn and Mendelsohn did not deliberately deviate from the consent. While Mendelsohn may raise these arguments at trial, they are not a basis to conclude a lack of extreme and outrageous conduct as a matter of law. Regardless of whether Plaintiff communicated the condition to his consent, Plaintiff allegedly communicated he was insufficiently sedated during the surgery, and Mendelsohn purportedly proceeded with the surgery with knowledge that Plaintiff was insufficiently sedated. Accordingly, the Court overrules the demurrer to Plaintiff’s fourth cause of action for intentional infliction of emotional distress. Based on the foregoing, the Court SUSTAINS IN PART AND OVERRULES IN PART Defendant Peter Mendelsohn’s demurrer to the second amended complaint. The Court sustains the demurrer to the third cause of action, without leave to amend. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
Case Number: 23SMCV02398 Hearing Date: April 17, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 VICTORIA SOPHIA SANJURO, et al., | Hearing Date: April 17, 2024 DEFENDANT’S MOTION TO SET ASIDE |
This case arises from a botched cosmetic surgery procedure. Plaintiff Gina Rodriguez is a celebrity talent manager. She regularly appears on television and media. Plaintiff hired Defendant Victoria Sophia Sanjurjo to apply facial fillers to her face. Defendant’s treatment was allegedly so deficient, it resulted in substantial deformities to Plaintiff’s face. Defendant also purportedly disclosed to Plaintiff’s friend, confidential details of the surgery. On May 30, 2023, Plaintiff filed a Complaint against Defendant. The Complaint alleges two claims for professional negligence and violation of California’s constitutional right of privacy. The Complaint seeks (1) $6,296 as amounts Plaintiff paid to Defendant, (2) $28,940 in losses when Plaintiff could not appear on a scheduled television program, and (3) $12,000 for future corrective procedures. Plaintiff filed a proof of service showing Defendant was served by substitute service on June 15, 2023. Defendant was obligated to respond within 30 days. Defendant did not do so. Plaintiff successfully requested the entry of Defendant’s default, which was entered by the Clerk’s Office on July 31, 2023. Plaintiff requested a default judgment on August 19, 2023, which was entered by the Court on October 20, 2023. This hearing is on Defendant’s motion to vacate default. Defendant seeks discretionary relief under Code Civ. Proc. 473(b) on grounds of mistake, inadvertence, surprise or excusable neglect. Specifically, Defendant argues she was mistaken in failing to file a responsive pleading to the Complaint because she was under the mistaken belief that insurance defense counsel would be retained in time. Defendant further argues that she never received the request for entry of default or request for entry of default judgment or the notice of ruling that the Court had entered default judgment, which were mailed to the wrong address, an address different than the one where substitute service was effected. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken¿against him or her through his or her mistake, inadvertence,¿surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) The court has broad discretion to vacate the entry of default, default judgment, a dismissal, or other proceeding, but that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure and within the set time limits. Pursuant to¿Code of Civil Procedure section 473(b), a motion to vacate cannot be brought more than six months after the proceeding was taken and must be made within a “reasonable time.” Mistake may be one of¿fact or law. Mistake of¿fact occurs when a person understands the¿facts to be other than they are; a mistake of¿law occurs when a person knows the¿facts as they really are, but has a¿mistaken belief as to¿the legal consequences of those¿facts. (People v. Kelly (1939) 35 Cal.App.2d 571, 574.) “Mistake is not a ground for relief under¿section 473, subdivision (b), when the court finds that the ‘mistake’ is simply the result¿of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law”. (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229-230.) Further, the term “surprise,” as used in¿section 473, refers to “some condition or situation in which a party … is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Id. at 229-230.) Finally, as for inadvertence or neglect, “[t]o warrant relief under¿section 473¿a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.” (Henderson, 187 Cal.App.4th at 229-230.) A lawyer’s failure to discharge routine professional duties is not excusable. “Conduct falling below the professional standard of care, such as the failure to timely object or to properly advance an argument is not therefore excusable.” (Generale Bank Nederland N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1400.) Where the mistake, inadvertence, surprise or neglect is excusable “and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of¿section 473¿if no prejudice to the opposing party will ensue.” (Id.) In such situations only “very slight evidence will be required to justify a court in setting aside the default.” (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136.) Defendant claims mistake in believing that she did not need to respond to the Complaint and could simply appear at the case management conference. But a mistake cannot be one based on ignorance of the law. “Mistake is not a ground for relief under¿section 473, subdivision (b), when the court finds that the ‘mistake’ is simply the result¿of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law”. (Henderson, 187 Cal.App.4th at 229-230.) Defendant next complains that she was not properly served with the request for entry of default and request for entry of default judgment. The documents were served on the wrong address, a different address than the one that where Plaintiff effected substitute service. The requests were served on 435 N. Roxbury Drive Suite 302 and not on 435 N. Roxubury Drive, Suite 402. Plaintiff does not dispute that the service was made to the wrong address. Accordingly, because Defendant never received the requests, she was surprised by the entry of default and default judgment and her neglect in failing to timely respond is excusable. There is no prejudice to Plaintiff, particularly given Plaintiff’s lack of proper notice to Defendant. The Opposition also does not specify any prejudice to Plaintiff. Defendant was diligent in filing this motion to vacate; the motion is brought within 180 days of the default judgment. Where there is no prejudice and Defendant was diligent, only “very slight evidence will be required to justify a court in setting aside the default.” (Miller, 13 Cal.App.4th at 1136.) On these facts, the Court concludes discretionary relief is warranted. Based on the foregoing, the Court GRANTS Defendant Victoria Sophia Sanjuro’s motion to vacate default. DATED: April 17, 2024 ___________________________ Judge of the Superior Court
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